CJE Opinion No. 2000-7

Attending, as Guest, Fundraising Event

September 26, 2000

CJE Opinion No. 2000-7

You have asked whether you may accept an invitation to attend “The Good Scout Award Dinner” which appears to be a fund-raising event on behalf of The . . . Council and the Boy Scouts of America. The event, which is being chaired by a state senator from your area, will honor the sheriff of a county in a part of the State in which you regularly sit. While the per person cost to attend is $75, both you and your spouse, if you were to attend, would be the guests of the president of a local bank. This individual has been your neighbor for the past eighteen years and spoke before the Governor’s Council in support of your nomination to be a judge. However, since becoming a judge, you have recused yourself from any matters pertaining to your neighbor or his bank, and will continue to do so in the future.

Leaving aside, for the moment, that you propose to attend this event as somebody’s guest, we note that Canon 5(B) of the Code of Judicial Conduct provides that a “judge may participate in . . . charitable activities that do not reflect adversely upon his impartiality or interfere with the performance of his judicial duties.” More specifically, while a judge may not be a speaker or a guest of honor at a charitable organization’s fund-raising events, “he may attend such events.” See Canon 5(B)(2). However, in view of the identity of the honoree and chairperson at this event, the prohibition contained in Canon 7 against a judge’s attendance at “political gatherings” must also be considered. In that regard, in CJE Opinion No. 92-2, we advised a judge that he may purchase tickets for and attend a charitable fund-raising dinner in honor of a state senator who would be “roasted” at the dinner even though many prominent political figures would be featured speakers. We concluded that “[d]espite the political cast of the dinner,” as described, it was not a “political gathering” because its purpose was not “to raise money for or otherwise support a political candidate, party, or cause” (although we cautioned that a gathering might have “a dual function of supporting both a charitable cause and a political cause” in which case a judge could not attend). These same considerations would lead us to conclude that neither Canon 5 nor Canon 7 would prohibit your attendance at “The Good Scout Award Dinner.” (1)

While you may attend this event, attendance by you and your spouse as the invited guests of your neighbor would constitute receipt of a gift from him. Under Canon 5(C)(4)(c), apart from certain exceptions not relevant here, a judge or his spouse may accept a gift so long as “the donor is not a party or other person whose interests have come or are likely to come before [the judge], and, if its value exceeds $350, the judge reports it” in his annual Public Report of Extra-Judicial Income. Because you resolved at the time you became a judge that you would not preside over matters involving your neighbor or his bank, neither he nor the bank would be “a party or other person whose interests have come or are likely to come before [you].” Compare CJE Opinion No. 94-2. However, as we did in 94-2, we hasten to add that a judge, at the time the opportunity to receive a gift arises, may not bring himself into compliance with Canon 5(C)(4)(c) simply by vowing to recuse himself prospectively and thereby accept what would otherwise be a prohibited gift. What is crucial in your case, as was the situation in 94-2, is that it has already been determined for an independent reason that you would not preside over matters involving the donor.

One final note. In view of the U.S. Supreme Court’s decision in Boy Scouts of America and Monmouth Council, et al. v. James Dale, 120 S. Ct. 2446 (2000), and the ensuing controversy concerning the Boy Scouts’ position on homosexuality, your attendance at this event may conceivably form the basis of a recusal motion in a case involving gay litigants or lawyers. If presented with such a motion, you will have to make your own judgment as to whether recusal is required under the guiding principles set out in Lena v. Commonwealth, 369 Mass. 571 (1976). See CJE Opinion No. 99-9 (copy enclosed).

1. In our view, nothing turns on the distinction between a county sheriff as the honoree in your situation and a state senator as the honoree in CJE No. 92-2. Even though a sheriff is considered a law enforcement official, your attendance at this event would not give the impression that you are favoring one side in litigation, i.e., the prosecution in criminal cases. A sheriff does not generally appear in litigation in the district courts, does not prosecute crime, and is not so identified with the prosecution so as to raise the type of concerns addressed in CJE Opinion Nos. 98-9, 98-13, and 98-16.